Opinion of the Court.

allegation that the $10,000 was justly due to her by Tyler. The further averment that the plaintiff had a right to require all the proper assets of the company to be gotten in and applied to the liquidation of the debts due to her and others, is merely an allegation that her first claim was to have the assets of the company applied to pay her, and that beyond that she had a claim against Tyler personally for the deficiency in such assets. There was a deficiency in the assets of the company, and the decree against Tyler was only for such deficiency.

The relief against Tyler was properly granted under the prayer of the bill for general relief. It was consonant with the facts set out in the bill as a ground of relief against Tyler personally, and it was relief agreeable to the case made by the bill. Story's Eq. Pl. § 40, etc.; Tayloe v. Merchants' Fire Ins. Co., 9 How. 390, 406. The bill could not have been successfully demurred to for multifariousness.

As to the assignments of error (3) and (4) we are of opinion, without discussing the evidence in detail, that it sustains the report of the master and the decree. The master reported that on June 1, 1884, the company had lost its entire cashpaid stock and was largely in debt besides; that the formulas and recipes purchased for $8486.84 were then and ever since had been without value, or at least unsalable; and that, in a word, the company was bankrupt. These findings were not excepted to by Tyler or the company. A large part of the money which Tyler had loaned to the company was repaid to him out of the $10,000 paid by the plaintiff. Tyler's letter to the plaintiff of April 10, 1884, in saying, "The last dividend that was declared was a 7 per cent semi-annual. The fiscal year ends on the first of June," was calculated naturally to produce the impression upon the plaintiff's mind that the last dividend was declared on the 1st of June, 1883, whereas the last dividend was June 1, 1882. It must be inferred that, if the plaintiff had been informed that no dividend had been declared since June 1, 1882, she would not have subscribed for the stock. This suppression of a material fact, which Tyler was bound in good faith to disclose, was equivalent to a false representation. Stewart v. Wyoming Ranche Co., 128 U. S.

Statement of the Case.

383, 388. The effect of the fraud committed by Tyler enured directly to his personal advantage. Not only was he, as a large stockholder and salaried officer, benefited by the plaintiff's payment into the treasury of the company of the $10,000, but, as already shown, $6200 of that sum went directly to his benefit, and the remainder, he testifies, went to the purchase of material and ordinary expenses of the company. The latter amount enabled the company to continue paying to Tyler his salary for some time longer.

Decree affirmed.

SMALE v. MITCHELL.

QUESTIONS CERTIFIED FROM THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

No. 1418. Argued January 14, 1892. - Decided February 1, 1892.

The provision in the statute of Illinois, (Rev. Stats. c. 45, § 35,) that " at any time within one year after a judgment, either upon default or verdict, in the action of ejectment, the party against whom it is rendered, his heirs or assigns, upon the payment of all costs recovered therein, shall be entitled to have the judgment vacated, and a new trial granted in the the cause" applies to such a judgment rendered in a Circuit Court of the United States, sitting within that State, on a mandate from this court in a case commenced in a court of the State of Illinois, and removed thence to the Circuit Court of the United States.

Ex parte Dubuque & Pacific Railroad, 1 Wall. 69, distinguished from this

case.

THE Court stated the case as follows:

The defendant in error, Charles H. Mitchell, as plaintiff, commenced an action of ejectment in a state court of Illinois, to recover certain described premises situated in that State, against Jabez G. Smale and others, which action was afterwards on sufficient grounds removed to the Circuit Court of the United States for the Northern District of Illinois. Issue being joined in the action, it was tried by the court without a jury, and upon the facts found judgment was rendered on Feb

Statement of the Case.

ruary 1, 1886, in favor of the plaintiff for a portion of the demanded premises, and in favor of the defendants for the residue. Judgment being entered thereon, the case was brought to this court on a writ of error, and on May 11, 1891, the judgment was reversed and the cause remanded to the Circuit Court with directions to enter judgment for the plaintiff in conformity with the opinion of this court. 140 U. S. 406. According to that opinion, the plaintiff was entitled to recover a greater quantity of land than that described in the judgment reversed. The declaration contained two counts, each describing a portion of the demanded premises, and the opinion directed that a general judgment be entered for the plaintiff for the property described in both counts. The judgment was reversed accordingly, and the cause remanded with instructions as above mentioned. The mandate of the court issued thereon followed the judgment, and was filed in the court below June 8, 1891; and that court, in obedience thereto, on the 12th of June following, entered a judgment in favor of the plaintiff for the premises described, and ordered a writ of possession to be issued.

On the following day, June 13, 1891, the defendants moved the court to vacate the judgment thus entered, and to grant them a new trial under the statute of Illinois, all costs of the action having been previously paid; but the court, after hearing argument thereon, denied the motion, and to its ruling the defendants excepted.

To review this ruling the defendants, in September, 1891, sued out a writ of error from the Circuit Court of Appeals for the Seventh Circuit, returnable in October following, and assigned as error the refusal of the Circuit Court to vacate the judgment entered on June 12, 1891, and grant a new trial under the statutes of Illinois, the costs having been paid, and the motion made in open court within one year from the rendition of the judgment, and the defendants never having had a new trial in the cause as provided for by that statute.

The case being brought, upon this writ of error, before the Circuit Court of Appeals, was heard on October 5, 1891, and the question arose as to the power of the court below to set

Statement of the Case.

aside and vacate the judgment entered on June 12, 1891, pursuant to the mandate and opinion of the Supreme Court of the United States, and to grant the defendants a new trial, as of course, and simply upon the payment of costs, as provided in the statutes of Illinois relating to the practice in actions of ejectment. The court being advised, it was ordered that the question be certified to the Supreme Court of the United States, pursuant to the sixth section of the act establishing Circuit Courts of Appeals. 26 Stat. 828, c. 517.

On the hearing in the Circuit Court of Appeals the Circuit Judge did not sit, but the court which made the order was held by the Circuit Justice and the District Judge for the Northern District of Illinois, who had been assigned to sit as a member of that court. Upon this certificate the case is now before this court for hearing.

The provisions of the law of Illinois relating to ejectment are contained in sections 34 and 35 of chapter 45 of the Revised Statutes of that State. They are as follows:

" 34. Every judgment in the action of ejectment shall be conclusive, as to the title established in such action, upon the party against whom the same is rendered, and against all parties claiming from, through or under such party, by title accruing after the commencement of such action, subject to the exceptions hereinafter named.

"§ 35. At any time within one year after a judgment, either upon default or verdict in the action of ejectment, the party against whom it is rendered, his heirs or assigns, upon the payment of all costs recovered therein, shall be entitled to have the judgment vacated, and a new trial granted in the cause. If the costs are paid and the motion therefor is filed in vacation, upon notice thereof being given to the adverse party or his agent or attorney, or the officer having any writ issued upon such judgment, all further proceedings shall be stayed till otherwise ordered by the court. The court, upon subsequent application, made within one year after the rendering of the second judgment in said cause, if satisfied that justice will thereby be promoted, and the rights of the parties more satisfactorily ascertained and established, may vacate the judg

Argument for Mitchell.

ment and grant another new trial; but not more than two new trials shall be granted to the same party under this section."

Mr. William C. Goudy for Smale and others. Mr. John I. Bennett was with him on the brief.

Mr. S. S. Gregory for Mitchell.

Mr. William M. Booth and Mr. James S. Harlan were on his brief.

The question to be determined is whether a judgment entered on a mandate reversing a judgment of a Circuit Court and directing a contrary judgment in conformity with the opinion of this court, is a judgment of that court on "default or verdict" within the meaning of the Illinois statute. We contend that that statute refers only to a judgment entered on a default, or trial by the trial court, and not to a judgment on mandate, which is virtually the judgment of this court.

The power of the Supreme Court in reviewing judgments of inferior courts is, in some respects, defined in section 701 of the Revised Statutes. This court does not enter judgments and issue execution as is done in courts of last resort in some of the States, but, having decided the case, remands it to the court below, with directions to enter the appropriate judgment there. When judgment has been entered in accordance with such direction of this court, it becomes in substance and effect the judgment, not of the court to which the case was remanded, but of this court, and as such it is not subject to be superseded or controlled in any way by the court below. Stewart v. Salamon, 97 U. S. 361; Humphrey v. Baker, 103 U. S. 736.

This view was taken under the judiciary act of 1789, 1 Stat. 73, c. 20. Ex parte Sibbald, 12 Pet. 488. Section 24 of that act is as follows: "And be it further enacted, That when a judgment or decree shall be reversed in a Circuit Court, such court shall proceed to render such judgment or pass such decree as the District Court should have rendered or passed; and the Supreme Court shall do the same on reversals therein, except where the reversal is in favor of the plaintiff or petitioner in the original suit, and the damages to be assessed or